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Ruling Means These Salmon Won't Get any Special Protections by Staff and News Service Seattle Post-Intelligencer - February 25, 2004

Citing jurisdictional grounds, a federal appeals court yesterday let stand a ruling that took Oregon coastal coho off the threatened species list because hatchery fish did not get the same protection as wild fish.

Property rights advocates called it an important victory.

The key issue is whether, when considering how many fish are in a salmon stock being considered for protection under the Endangered Species Act, the more-numerous hatchery fish should count.

They should, says the Pacific Legal Foundation, and that should mean that many fewer stocks qualify for protections that lead to restrictions on property use.

Yesterday's ruling by the 9th U.S. Circuit Court of Appeals left the National Marine Fisheries Service no clear statement whether federal actions such as timber sales on national forests, which could affect salmon, can now go forward, said Brian Gorman, a Fisheries Service spokesman.

The appeals court ruled that an appeal by environmental groups was premature because U.S. District Judge Michael Hogan had ordered the Fisheries Service to rewrite its policy. Until the rewrite is done, the court said, the litigation should stop.

Hogan's ruling led to Oregon coastal coho being taken off the threatened species list, some national forest timber sales being released for harvest, and the Fisheries Service starting a review of Endangered Species Act protection for 24 of the 26 different populations of salmon and steelhead in the West.

That review is due to be released at the end of March for eight salmon populations in the Northwest, Gorman said. The reviews of Oregon coastal coho and the rest are due at the end of the summer.

"The process that we embarked on in October 2001 following Hogan's ruling is continuing. This 9th Circuit ruling has not changed that one scintilla," Gorman said.

But Pacific Legal Foundation attorney Russ Brooks pointed out that the appeals court ruling acknowledged that Hogan "legitimately doubts" that the Fisheries Service can legally split hatchery and wild fish when considering how to apply the law.

"The appeals court was sending a message to the Fisheries Service that that's not going to fly," Brooks said. "That's based on Hogan's finding that the fish are the same species.

"They spawn together, they interbreed," Brooks said. "When you have those facts, you just can't parse out the fish."